Computers to Replace Lawyers? Not Yet

E-Discovery: Twenty Questions and Answers (American Bar Association, 2008), by John M. Barkett, explores the world of electronically stored information and even raises the issue: “Has the day arrived for computers to replace lawyers?”

“Too many horror stories have arisen as a result of the mishandling of email and other electronically stored information (ESI), often because of an ‘it-can’t-happen-here’ mentality,” notes Douglas E. Motzenbecker, Newark, NJ, cochair of the Section of Litigation’s First Chair Press (and a former editor-in-chief of Litigation News), which published the book. This guide “provides a concise discussion on the leading problems presented by ESI and how to cope with them practically and effectively,” Motzenbecker says.

As a practical matter, the lawyer’s role in discovery is not likely to be taken over by a super-computer any time soon. Though “concept searching” may create efficiencies, developing the concept searches requires a team of individuals who understand enough about the case to design “between words.” Such an effort will require considerable investment in terms of building an electronic infrastructure. Nevertheless, the value of automated review of ESI will continue to grow, and lawyers should monitor software advances in the area of alternative search protocols.

Barkett’s work raises other ideas that should concern lawyers in this increasingly digital landscape. In a paper world, a discarded document leaves no trail. In a digital world, where a document is deleted, it may still exist, raising several questions:

• Must back-up tapes be preserved?
• Are document retention notices and keyword search protocols discoverable?
• What is a reasonably usable form?

These questions help the reader analyze larger concepts, such as obtaining sanctions for electronic discovery abuses. The book includes a synthesis of case law surrounding e-discovery and its impact on international and domestic arbitration. The message is clear: “There is no substitute for e-discovery due diligence.”

“To be conversant in e-discovery, litigators must be familiar not only with the numerous rules changes and evolving case law affecting e-discovery but also with the cutting edge technology involved, such as metadata, backup tape encryption, and the preservation and retrieval of ESI,” Motzenbecker notes. “Barkett has explained the legal and technological concepts well.”

Keywords: E-discovery, technology, electronically stored information, ESI, email

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